Grant applications to remain sealed

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Reporters cannot have access to unfunded grant applications for state money because they are created by private entities and not the government, the Pennsylvania Supreme Court ruled last week.

Oct. 29, 2004 — Rejected applications for state-funded grants are not public records under the state Right-to-Know Act, the Pennsylvania Supreme Court ruled in a sharply divided opinion last week. As a result, the process by which local communities receive state-funded grants will remain obscured from public view.

Pennsylvania operates a Community Revitalization Program that channels public funds to local community development projects. In 1999, the Tribune Review and WPXI-TV submitted a public records request to the Department of Community and Economic Development, the state agency that administers the grant program, for access to all grant applications. Among other things, the grant applications contain project description information, project location, funding amount requested, and internal agency notations about the project’s compliance with funding criteria.

By comparing successful and unsuccessful applications, the news organizations hoped to evaluate whether grants were awarded on the basis of merit. Rumors had swirled that state legislator’s personal recommendations often skewed the competition, a fact ultimately confirmed during litigation.

The Department of Community and Economic Development refused to release any rejected grant applications, claiming that they were not public records because they were not created by the state.

Documents that help in the decision-making process and writings that accompany funding are considered public records under state law, but information in unfunded grant applications is neither, a 4-3 majority of the Pennsylvania Supreme Court ruled. Such applications are “merely a collation of data provided by Program applicants,” Justice Sandra Schultz Newman wrote for the court. “Whereas the Right-to-Know Act allows the public to review agency documents, it does not permit public consumption of documents created by private entities, unless done at the express direction of the agency.”

The Pennsylvania Supreme Court affirmed a lower court’s decision which rested on completely different logic. Instead of focusing on the private creation of the documents, the lower court concluded that the documents’ role in the government’s deliberative process exempted them from public records law.

In dissent, Justice Thomas G. Saylor commented that the statutory definition of a public record clearly “applies to a wide range of documents that contain information relating to the disbursement of public funds.”

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